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1966 Supreme(Pat) 80
PATNA HIGH COURT
H.Mahapatra and A.B.N.Sinha JJ.
Chaturbhuj Pradhan
Versus
Sarbeshwar Pradhan
Appeal From Appellate Decree No. 329 of 1961 ;
Decided On : JULY 13, 1966
The Hindu Succession Act, 1956, does not retrospectively affect customs or usages in force immediately before the commencement of the Act, and a custom of succession, if proved, can be saved and will not be affected by the provisions of Section 4 of the Act.
Headnote:
HINDU SUCCESSION ACT, 1956 - SEC. 4, 8, 14, 15 - CUSTOM - EFFECT OF HINDU SUCCESSION ACT ON CUSTOM - SUCCESSION TO ESTATE OF LAST MALE HOLDER - LIMITED OWNER - DEATH OF LIMITED OWNER - SUCCESSION TO OPEN - RULE OF SUCCESSION - CUSTOMARY SUCCESSION - PROOF OF CUSTOM - TRANSFER BY LIMITED OWNER - VALIDITY - ADVERSE POSSESSION AGAINST LIMITED OWNER - EFFECT ON REVERSIONARY HEIRS' TITLE.
Fact of the Case:
Plaintiff claimed title and possession over a property, alleging that the property belonged to his father, who died in 1908, leaving a widow and two daughters. The widow remained in possession of the property until her death in 1957. The plaintiff claimed that, according to custom, he was entitled to succeed to the property as the brother of the deceased father. The defendants, who were the sons of the deceased daughters, claimed title through a sale deed executed by the widow in 1949.
Finding of the Court:
The trial court dismissed the plaintiff's suit, holding that the widow had acquired absolute rights over the property under Section 14(1) of the Hindu Succession Act, 1956. The lower appellate court also dismissed the suit, holding that Section 14(2) of the Act applied and that the defendants were entitled to succeed to the property as the heirs of the widow.
Issues: 1. Whether the compromise entered into in a previous suit, Exhibit 2, was binding on the parties and affected the plaintiff's claim. 2. Whether the alleged custom of succession pleaded by the plaintiff was valid and applicable. 3. Whether the transfer made by the widow in favor of the defendants under Exhibit 3 was valid. 4. Whether the adverse possession acquired by the defendants against the widow affected the reversionary heirs' title.
Ratio Decidendi: 1. The compromise, Exhibit 2, was not binding on the parties as it did not mention that the property would go to the plaintiff on the death of the widow. The endorsement made by the widow at the time of putting her mark to the compromise, stating that the property would go to her heirs, was not part of the compromise and was irrelevant for the purpose of the present suit. 2. Section 4 of the Hindu Succession Act, 1956, does not retrospectively affect customs or usages in force immediately before the commencement of the Act. The custom alleged by the plaintiff, if proved, could be saved and would not be affected by the provisions of Section 4. 3. The transfer made by the widow in favor of the defendants under Exhibit 3 was not valid as she had no power of alienation. 4. The adverse possession acquired by the defendants against the widow did not affect the reversionary heirs' title as the suit was instituted within a few months of the widow's death.
Final Decision: The case was remanded to the trial court for disposal according to law, with a direction to record a finding on the alleged custom and decide the case accordingly.
Mahapatra, J.
1. The plaintiff is the appellant. His case was that the land described in schedule A of the plaint besides some other lands in mauza Kuda Singh, Police station Kharswan, belonged to one Gurucha-ran Pradhan. Gurucharan had two sons Dasarathi and Kolu, the latter being the plaintiff. Dasarathhis wife was Kamala. Dasarathi died in 1908 leaving Kamala as widow and two daughters. Paluni and Saradamani. Each of the the two daughters had a son, defendant 1 being the son of the former and defendant 2 the son of the latter The plaintiff alleged that, according to the custom in regard to succession as prevalent in that area among the people belonging to the class to which the parties belong, on the death of a male holder of property, in absence of any male issue of his, the agnates of the last male holder succeed to the estate, although the last male holders widow will remain in possession as long as she is alive of that estate, without any power of alienation whatsoever. On her death the agnates of the last male holder will come into possession of that property. The plaintiffs further case was that Dasarathi had separated from the family during the life time of the common ancestor, Gurucharan Pradhan with schedule A property given to him. On Dasarathis death, schedule A property came by way of succession to the plaintiff being the brother of Dasarathi, although that remained in possession of his widow Kamala. As Kamala attempted to transfer a portion of that property a title suit, title suit No. 3 of 1913, was instituted against her by Gurucharan and Kolu for restraining her from making such alienation in regard to schedule A properly. There was a compromise effected in that suit, Exhibit 2, in which it was stated by both the parties that as long as Kamala would remain alive she would continue her possession over that property and there would be no interference with her possession from any side. At the end of that document, while Kamala put her sign, it was stated by her that "Be it noted that after my death my properties will go to my heirs." I shall refer to this part of the compromise at a later stage while considering its effect on the parties to the present litigation. To continue the plaintiffs narration, Gurucharan died in 1929. Another suit. Title suit No. 11 of 1929, was brought by the present plaintiff, Kolu, again for a permanent injunction against Kamala restraining her from making any alienation, that suit was decreed on the 23rd June, 1929. In spite of that, however, Kamala executed a deed of sale in regard to a part of schedule A property (described in schedule B of the plaint) on the 3rd December. 1949 in favour of one of her daughters son, defendant 1. That document was marked as Exhibit 3 on the plaintiffs side and Exhibit B on the defendants side. Kamala died on the 5th May. 1957. The plaintiff claimed that after her death he is entitled to possession of Schedule B property which had gone to the possession of defendant 1 on the strength of the sale deed executed by Kamala in his favour in 1949. He, therefore, instituted the present suit for declaration of title and recovery of possession over that property.
2. The defence was that schedule A property was acquired by Gurucharan himself and did not form a part of the ancestral property of the family in his hand. It was given to Kamalas husband, after, whose death Kamala inherited that There was no custom in regard to succession by the agnates of the last male holder. According to the Hindu Succession Act, Kamala had acquired absolute right over that property before her death Therefore, the plaintiff had no title and was not entitled to recover any possession from defendant 1.
3. The Courts below have concurrently dismissed the plaintiffs suit. The trial Court held that under Sub-section (1) of Sec.14 of the Hindu Succession Act, 1956, Kamala had acquired absolute rights over the suit property; and her heirs were to succeed to that on her death, i
